TURNER v. THE STATE

J.P. Stevenson, B.F. Bean, and Houlhousen Feagan, for appellant. — 1. The court erred in failing and refusing to give special charge number 1, asked by defendant. Homicide is justifiable and subject to no punishment when committed in self-defense or in defense of any third person, when the nature of the attack, the character of the crowd, and all the facts and circumstances surrounding the defendant produced in his mind a reasonable fear or apprehension of death or of some serious bodily injury to such third person from the attack; and while in this state of mind, if he kills the assailant of said third party while making such attack in order to protect said assaulted third party, then he is not guilty. Guffee v. The State, 8 Texas Crim. App., 187; Foster v. The State, 8 Texas Crim. App., 248; Kemp v. The State, 11 Texas Crim. App., 174; North v. The State, 12 Texas Crim. App., 111; Snell v. The State, 29 Texas Crim. App., 236; West v. The State, 18 Texas Crim. App., 640; Smith v. The State, 15 Texas Crim. App., 139; Burkhard v. The State, 18 Texas Crim. App., 599; McConnell v. The State, 22 Texas Crim. App., 354; Liskosski v. The State, 23 Texas Crim. App., 165.

2. The court erred in not permitting the witness J.I. Cannon, when recalled, to answer the following question propounded to him by the defendant: "Did you not state on the examining trial of this defendant in the town of Leggett, in Polk County, Texas, about two days after N.R. Hickman was killed, that you had been in Leggett and away from the gin, your place of business, about one hour and twenty minutes, when Hickman was killed?" Because defendant expected said witness to answer said question in the affirmative, and to state that he had been in the town of Leggett, and away from his business, one hour and twenty minutes before the killing; which testimony would go to show, in connection with other testimony adduced on the trial of said cause, that said witness was there present for a considerable length of time before the killing, to aid and encourage his brother-in-law, the deceased, in his attack upon Nick Vinson; and in the event he denied having so stated on the examining trial, then said evidence was admissible for the purpose of laying the predicate to impeach said witness. Harvey v. The State, 37 Tex. 365; Treadway v. The State, 1 Texas Crim. App., 668; Grosse v. The State, 11 Texas Crim. App., 364; Bennett v. The State, 28 Texas Crim. App., 539; Garza v. The State, 3 Texas Crim. App., 286.

The court erred in permitting the State to introduce in evidence and read in the presence of the jury, over the objection of the defendant, the petition, the order of the judge in granting the injunction, and the writ of injunction and indorsement thereon in cause number 2066, pending in the District Court of Polk County, Texas, wherein N.R. Hickman was plaintiff and W.A. Turner and others were defendants.

We submit that the admission of the records in causes, other than the one on trial, in trials for homicide, as a rule are limited to the records of criminal cases, and that proof of a distinct crime, as a general rule, will not be admitted unless taken in connection with other facts in the case. The evidence tends to establish a reason for and the motive which actuated the hostility of defendant towards the deceased, and is an appropriate matter to be considered and weighed by the jury in connection with the other testimony in determining the question of motive or intent. We submit that this record throws no light on the case at bar. Dill v. The State, I Texas Crim. App., 278; Rucker v. The State, 7 Texas Crim. App., 560; Coward v. The State, 6 Texas Crim. App., 59; Somerville v. The State, 6 Texas Crim. App., 433; McKinney v. The State, 8 Texas Crim. App., 639; Powell v. The State, 13 Texas Crim. App., 244; Partain v. The State, 22 Texas Crim. App., 100; Taylor v. The State, 14 Texas Crim. App., 340; Dubose v. The State, 13 Texas Crim. App., 418; Smith v. The State, 15 Texas Crim. App., 347; Pinckord v. The State, 13 Texas Crim. App., 468.

Chilton McIlwaine, also for appellant.

We submit that this case should be reversed, because the court failed to charge on justifiable homicide in any way, and because the charge on manslaughter was too formal, restrictive, and incomplete to fairly present the question of the degree of defendant's guilt.

Was the court authorized to narrow the case, in its charge, to one of murder or manslaughter alone? There are certain facts connected with the difficulty about which there is no contradiction. That the deceased Hickman had brought suit against Vinson, Turner, and others about some cattle; that Hickman and Cannon were brothers-in-law; that Vinson and Turner were long time friends; that Vinson was a much smaller man than Hickman; that Vinson was drinking; that Hickman began the altercation; that he knocked Vinson down and jumped on him; that Cannon cried out, "Let them fight;" that Cannon came up to where Hickman and Vinson were struggling; that there was a fresh gash on Vinson's face. Thus far every line of the testimony agrees. If there were no more than these uncontroverted facts, what would be the legal rights of the participants? To analyze the case more clearly, the question should be, what were the rights of Vinson, the man who had been halted and knocked down? For it must be always borne in mind that Turner's right to defend the person of Vinson was at least as high and complete as the right of Vinson himself. Reyons v. The State, 32 Tex. Crim. 151; Bonner v. The State, 29 Texas Crim. App., 230.

If, therefore, Vinson himself had fired the fatal shot — if he, when forcibly stopped on the highway, assailed by a man of superior size, too drunk to properly defend himself, dazed and bloody with a blow which felled him to the ground, helpless by the grasp at his collar, prostrate under the knee of his enemy, should at that moment notice a kinsman of his assailant coming up with the exclamation, "Let them fight," and while thus beset should slay his assailant, would it be said that his guilt was so clear and deep that the jury should not even consider the question of justification?

Grant to the State that it was no more than a fist fight — and even then we claim that the fist of a strong man, if used in attack upon a physical inferior, may be both "unlawful and violent," and the weaker man is not limited to the puny and ineffective resistance which his unaided strength affords — our statute recognizes that the right of self-defense may spring from an attack of less gravity than one which produces a fear of death or serious bodily injury. (Penal Code, art. 572.) In the case of a robust man who kicks and beats a man of smaller size, this court has applied that statute by going even far enough to set aside a conviction of manslaughter, with the mildest penalty. Garello v. The State, 31 Tex.Crim. Rep..

Surely, then, it should have been left to the jury to determine whether Hickman was the aggressor in this case, and whether Turner could have prevented the injury by resorting to other means short of killing him. The right of killing in self-defense may exist in the case of a fist fight as well its in case of attacks more plainly threatening death, and depends upon the size and strength of the parties, coupled with other surroundings. Among the many cases in which this doctrine is enforced, there is a late interesting one, which we will file with this argument — People v. Harris, 54 N.W. Rep., 648 (Michigan).

But we can not admit that the difficulty out of which the killing of Hickman resulted was properly characterized by the district judge when, in the explanation of the refusal of the special charge, he describes it as a fisticuff. It was more than a fisticuff; it was more than a brutal battery of one man by his physical superior. Where does the court find warrant to exclude from the jury the defensive theories which might be predicated upon Cannon's action in advancing to the parties with his knife drawn? Put yourself in Vinson's place for a second time. He has been denounced, halted, bantered, and knocked down. A stronger man jumps on him, holds him by the collar, pins him to the ground with his knees, and prepares to beat him still more severely. Just at this crisis, drunk, helpless, and recovering from unconsciousness, he sees the brother-in-law of his adversary advancing to them with a drawn knife. He knows he does not come as a peace officer, because he is the only bystander to cry out, "Let them fight." Would not any reasonable man suppose that he was about to be visited with still more serious injury than that which his enemy could otherwise inflict? He might in the first place well conclude that a combination of enemies was about to take extreme vengeance upon him, and he might certainly conclude that the brutality of the man who had already knocked him down would be left to do its worst. In either event he would be warranted in protecting himself with a pistol, if no other practical means could be availed of. 'It is a familiar principle, that where there are more assailants than one the slayer has the right to act upon the hostile demonstrations of either, and to kill either of them if it reasonably appeared that they were acting together to take his life or to do him serious bodily injury. Meuly's case, 26 Texas Crim. App., 274; Jones' case, 20 Texas Crim. App., 671; Cartwright's case, 16 Texas Crim. App., 486; McLaughlin's case, 10 Texas Crim. App., 340.

But there is, in our opinion, still another fundamental weakness in the charge of the court. It submitted the question of manslaughter after a fashion, but it was a fashion which must have been grievously prejudicial to defendant. In the main charge manslaughter is treated only in formal definitions. There is no more application to the facts of Turner's case than to any other homicide case that ever happened in Texas. This court has condemned the practice and reversed cases where manslaughter was charged upon in this mode. Low's case, 20 So. W. Rep., 366.

It is true that there is an attempted application of the law of manslaughter to the facts by a special charge asked by defendant and given by the court, but this special charge only touches one phase of the question of manslaughter. And we urge upon this court that the great central question in a defendant's case should not be minimized in value and sidetracked in consideration by giving it the uncertain footing of a special charge only.

This special charge touches only the general proposition, that if defendant was present and a fight arose, and the fight itself, the character of the crowd, and the surrounding circumstances were sufficient to create and did create such a degree of anger, rage, sudden resentment, or terror as to render the mind of defendant incapable of cool reflection, and "you so find the facts to have been beyond a reasonable doubt," defendant would be guilty of manslaughter.

But the court should, without any special request, have submitted the issue of manslaughter upon other distinct phases of the testimony.

1. There was an assault and battery by deceased Hickman on Vinson, which caused pain and bloodshed, and this would have reduced Turner's criminality to manslaughter.

2. There was a serious personal conflict, in which great injury was inflicted by Hickman on Vinson, by means of great superiority of strength. Lawrence's case, 10 Texas Crim. App., 495.

The above are specifically mentioned in our statute as adequate causes which may reduce a felonious homicide to manslaughter; but it is also a familiar doctrine of the common law that a sudden killing in resistance of an attack with the fists may be manslaughter. 1 Whart. Crim. Law, sec. 484.

The Texas Code of Criminal Procedure carefully provides, "that the same rules which regulate the conduct of a person about to be injured in repelling the aggression are also applicable to the conduct of him who interferes in behalf of such person." Art. 86.

But not only are these two theories of manslaughter justly predicated upon Hickman's conduct, but the acts of Cannon in advancing to the place of combat with a drawn knife can not be wholly excluded from consideration in deciding upon the question of manslaughter. Standing alone, it might be said that it was a provocation given by some person other than the party killed; but it is entitled to be considered in combination with the acts of Hickman, and must have greatly intensified the rage and terror of Turner when he came upon the scene and saw, as he believed, that his friend, fastened to the earth by Hickman, was about to become the victim of still further injuries from the combined efforts of both Hickman and Cannon.